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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-CG-
WLTH Radio, Inc. )
WLTH(AM) ) NAL/Acct. No.
Gary, Indiana )
) FRN 0004 9887 62
Adopted: December 2, 2004 Released:
December 6, 2004
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of sixteen thousand dollars
($16,000) to WLTH Radio, Inc. (``WLTH''), licensee of AM radio
station WLTH, Gary, Indiana, and owner of the station's antenna
structures, for willful and repeated violation of Sections
17.4(a), 17.48 and 17.51(a) of the Commission's Rules
(``Rules'').1 The noted violations involve WLTH's failure to
register the antenna structure for the station, failure to notify
the Federal Aviation Administration (``FAA'') of a known antenna
structure light outage, and its failure to exhibit the required
red obstruction lighting.
2. On December 23, 2003, the District Director of the
Commission's Chicago, Illinois, Field Office (``Chicago Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'') 2
to WLTH in the amount of sixteen thousand dollars ($16,000).
WLTH filed its initial response to the NAL on January 23, 2004,
and supplemented it on February 27 and September 8, 2004.
3. WLTH has two antenna structures - one located in Gary,
Indiana, and used for WLTH's daytime transmissions (``the day
antenna structure'') and the other located in a rural area near
Gary, Indiana, and used for WLTH's nighttime transmissions (``the
night antenna structure''). The day antenna structure's height
is more than 200 feet above ground level (``AGL'') and that
structure is subject to the registration, lighting and marking
requirements specified in Part 17 of the Rules.3 The night
antenna structure, whose height is less than 200 feet AGL, is not
subject those requirements.
4. On February 14, 2003, the Commission received a
complaint alleging that WLTH's antenna structure lighting was not
operational. The agent checked the Commission's antenna
structure registration (``ASR'') data base on February 26, 2003,
and determined that WLTH's day antenna structure was not
registered.4 On March 5 and 6, 2003, respectively an agent from
the Chicago Office informed a WLTH employee and the station's
engineer by telephone that the Commission had received the
complaint. On March 12, 2003, the station engineer told the
agent by telephone that there were underground cabling problems
that resulted in a lighting outage at the day antenna structure
and that he did not know the length of the outage because the
power loss was sporadic.
5. On March 12, 2003, the station engineer also told the
agent that he had not notified the Federal Aviation
Administration (``FAA'') of the lighting outage.5 On March 19,
2003, the agent contacted the FAA and determined that the FAA's
records indicated that WLTH notified the FAA of the lighting
outage on March 12, 2003. In a letter dated March 26, 2003, WLTH
stated that it had corrected the lighting outage.
6. Based on its investigation, on December 23, 2003, the
Chicago Office issued the subject NAL for WLTH's apparent willful
and repeated violations of Sections 17.4(a), 17.48(a), and
17.51(a) of the Rules. In its initial response to the NAL, WLTH
does not contest the fact that the tower was unregistered or
unlighted for a period of time, but contends that its day antenna
structure is less than 200 feet AGL and, therefore, is not
subject to the Commission's antenna registration and lighting
requirements. However, in its September 8, 2004, supplementary
response, WLTH reports that it conducted a survey on September 4,
2004, which established that the day antenna structure's height
is 202.97 feet AGL. In addition, WLTH contends that hunters
caused the lighting outage by shooting out the antenna structure
lights. Finally, WLTH claims that it notified the FAA of the
outage on March 5, 2003.
7. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),6 Section 1.80 of the Rules,7
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines (``Policy Statement'').8 Section 503(b) of the Act
requires that, in examining WLTH's response, the Commission take
into account the nature, circumstances, extent and gravity of the
violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and
other such matters as justice may require.9
8. Section 17.4(a) of the Rules provides in pertinent part
that the owner of an antenna structure that had been assigned
painting and lighting requirements prior to July 1, 1996, must
register the antenna structure prior to July 1, 1998. According
to the Commission's records, WLTH's day antenna structure had
been assigned painting and lighting requirements. WLTH concedes
that its day antenna structure was not registered. We conclude
that WLTH willfully10 and repeatedly11 violated Section 17.4(a)
of the Rules.
9. Section 17.21(a) of the Rules12 requires that antenna
structures exceeding 200 feet in height AGL be painted and
lighted. As indicated above, WLTH's day antenna structure
exceeds 200 feet in height AGL and is required to have red
obstruction lighting. Section 17.51(a) of the Rules requires
that the red obstruction lighting be exhibited between sunset and
sunrise. On March 5 and 6, 2003, respectively an agent from the
Chicago Office informed a WLTH of the outage.13 WLTH admitted in
the March 12, 2003, telephone conversation and in its letter of
March 26, 2003, that there was a lighting outage at its day
antenna structure. The fact that WLTH notified the FAA of the
lighting outage on March 12, 2003,14 is also an admission that
the outage existed. In its response to the NAL, WLTH claims that
hunters caused the outage by shooting out the antenna structure
lights. This explanation differs from WLTH's earlier explanation
during the March 12, 2003, telephone conversation that the outage
resulted from a sporadic power loss. Furthermore, the tower
described in WLTH's response to the NAL is in ``a wooded, rural
area''15 and is apparently WLTH's night antenna structure, which
has no lighting requirement. We conclude that WLTH did not
display the required red obstruction lighting at its day antenna
structure, in willful and repeated violation of Section 17.51(a)
of the Rules.
10. Section 17.48 of the Rules requires antenna structure
owners to immediately notify the FAA of any lighting outage not
corrected within 30 minutes. The Chicago Office notified WLTH of
the outage on March 5, 2004. WLTH now claims that it notified
the FAA of the outage the on the same day. We must, however,
reject that claim because it is inconsistent with the record.
WLTH's station engineer stated, during his March 12, 2003,
telephone conversation with the FCC agent that he had not
notified the FAA of the outage. Furthermore, as of March 19,
2003, the FAA's records indicated that WLTH notified the FAA of
the lighting outage on March 12, 2003. We conclude that WLTH did
not immediately notify the FAA of a lighting outage not corrected
within 30 minutes, in willful and repeated violation of Section
17.48 of the Commission's Rules.
11. We have examined WLTH's response to the NAL pursuant to
the statutory factors above, and in conjunction with the Policy
Statement as well. As a result of our review, we conclude that
WLTH willfully and repeatedly violated Sections 17.4(a), 17.48
and 17.51(a) of the Rules and that neither reduction nor
cancellation of the proposed monetary forfeiture is warranted.
12. As of the date of the adoption of this Order, WLTH has
provided no information indicating that it has achieved
compliance with Section 17.4(a) of the Rules. Accordingly, we
will require, pursuant to Section 308(b) of the Act,16 that WLTH
Radio, Inc., report to the Enforcement Bureau no more than thirty
(30) days following the release of this order how it plans to
achieve compliance with Section 17.4(a). WLTH's report must be
submitted in the form of an affidavit or declaration signed by an
officer or director.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,17 WLTH Radio, Inc., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of sixteen thousand dollars ($16,000)
for willfully and repeatedly violating Sections 17.4(a), 17.48
and 17.51(a) of the Rules.
14. IT IS FURTHER ORDERED that, pursuant to Section 308(b)
of the Act, WLTH must submit the report described in Paragraph
12, above, no more than thirty (30) days following the release of
this Order, to the Federal Communications Commission, Enforcement
Bureau, Spectrum Enforcement Division, 445 12th Street, S.W.,
Room 7-A820, Washington, D.C. 20554, Attention: Thomas D. Fitz-
15. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.18
Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. No. and FRN
No. referenced above. Payment by check or money order may be
mailed to Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.19
16. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by regular mail Certified Mail Return Receipt Requested
to WLTH Radio, Inc., P. O. Box 2300, Gary, Indiana 46409, and to
its counsel, Allan G. Moskowitz, Kaye Scholer LLP, 901 15th
Street, N.W., Suite 1100, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.4(a), 17.48(a) and 17.51(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432320001 (Enf. Bur., Chicago Office, rel. December 23, 2003).
3 47 C.F.R. § 17.1 et seq. According to the Commission's
records, WLTH's day antenna structure is required to have red
obstruction lighting at night. (The information is from the
Commission's ``towpub'' data base, which contains information
concerning antenna structures that existed before the Commission
required antenna structure registration.)
4 As of the date of the adoption of this Order, the ASR data base
indicates that WLTH's day antenna structure remains unregistered.
On February 26, 2003, the Chicago Office sent WLTH a letter
informing it of the lighting and registration violations.
5 On March 12, 2003, the Chicago Office issued a Notice of
Violation to WLTH for its failure to notify the FAA of the outage
as required by Section 17.48(a) of the Rules.
6 47 U.S.C. § 503(b).
7 47 C.F.R. § 1.80.
8 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
9 47 U.S.C. § 503(b)(2)(D).
10 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act ....'' See Southern California Broadcasting Company,
6 FCC Rcd 4387, 4388 (1991).
11 As provided by 47 U.S.C. § 312(f)(2), a violation that
continues for more than one day is ``repeated.'' The Conference
Report for Section 312(f)(2) indicates that Congress intended to
apply this definition to Section 503 of the Act as well as
Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51 (1982). See
Southern California Broadcasting Co., supra.
12 47 C.F.R. § 17.21(a).
13 The record does not reflect that WLTH was aware of the light
outage pursuant to the tower owner responsibilities set out in
Section 17.47(a) of the Rules, 47 C.F.R. § 17.47(a), to detect
such light failures.
14 WLTH's assertion that it notified the FAA of the outage on
March 5, 2003, is clearly erroneous in light of the station
engineer's statement on March 12, 2003, that he had not notified
the FAA, and the FAA records which indicated that WLTH notified
the FAA on March 12, 2003.
15 WLTH's response dated January 23, 2004, to the NAL.
16 47 U.S.C. § 308(b).
17 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.